Oct 31: DHS Issues Federal Register Notice to continue TPS for four countries under Court Order
On Oct. 3, 2018, a preliminary injunction was issued in the Ramos v. Nielsen case, temporarily halting the Department of Homeland Security’s, or DHS, termination of Temporary Protected Status, or TPS, for Sudan, Nicaragua, Haiti and El Salvador.
DHS published its plan for compliance with this injunction in the Federal Register on Oct. 31, 2018. The Federal Register Notice states that TPS holders from Sudan, Nicaragua, Haiti and El Salvador will retain TPS while the preliminary injunction remains in effect, provided an individual TPS holder’s status is not withdrawn under INA section 224(c)(3) or 8 CFR 244.14 because of ineligibility.
This initial Federal Register Notice includes detailed information about the continuation of TPS for Sudanese and Nicaraguan TPS holders whose status was set to expire on Nov. 3, 2018 and Jan. 5, 2019, respectively. More information regarding the continuation of TPS for Haiti and El Salvador under the Court Order is to come.
Sudanese and Nicaraguan TPS holders:
- Nicaraguan and Sudanese TPS holders who re-registered during the last re-registration period for their country receive an automatic extension of TPS until April 2, 2019 through the Federal Register Notice.
- Nicaraguan TPS holders who have an Employment Authorization Document, or EAD, with the category codes “A-12” or “C-19” and bear either Jan. 5, 2018 or Jan. 5, 2019 expiration dates receive automatic extensions of their work authorization through April 2, 2019.
- Sudanese TPS holders who have EADs with the category codes “A-12” or “C-19”and bear either Nov. 2, 2017 or Nov. 2, 2018 expiration dates receive automatic extensions of their work authorization through April 2, 2019.
- Automatic extensions apply to TPS holders whose cases have already been approved by USCIS as well as TPS holders who have applications pending with USCIS.
- TPS holders with pending applications (Forms I-821 and I-765) will automatically receive Notices of Action (I-797) and EADs with an expiration date of April 2, 2019 if their respective applications are approved by USCIS.
Haitian and Salvadoran TPS holders:
- This initial Federal Register Notice focuses on Sudanese and Nicaraguan TPS holders, as the termination dates for those countries were nearer in the future (in Nov. 2018 and Jan. 2019, respectively).
- Current Haitian and Salvadoran TPS holders do not need to take any action at this time.
- More information about TPS for Haiti and El Salvador will be provided if the litigation continues past the termination dates for Haiti (July 22, 2019) and El Salvador (Sept. 9, 2019).
The Federal Register Notice also includes:
- Instructions for TPS holders and employers completing Form I-9, including reminders to employers about unfair employment practices.
- Information about how Nicaraguan and Sudanese applicants may seek a new EAD card by filing Form I-765. Important Note: CLINIC recommends applicants who are considering this option carefully review USCIS processing times for EAD applications before submitting the application and fee.
- Guidance regarding documentation that may be required when seeking driver’s licenses and how TPS holders may use USCIS’ SAVE “CaseCheck” system to confirm their immigration status is up-to-date before going to the DMV.
Future Federal Register Notices related to the litigation:
- The Federal Register Notices states that TPS will not be terminated for the four countries while the preliminary injunction is in place.
- So long as the preliminary injunction remains in place, DHS will issue another Federal Register Notice approximately 30 days before April 2, 2019 (the end of the automatic extension for Sudan and Nicaragua) for nine months, covering all four countries.
- In the event the preliminary injunction is removed and DHS is permitted to terminate TPS for the four countries, a termination would go into effect either 1) 120 days after the order permitting the termination or 2) on the previously announced termination date for the country (whichever date is later).
Three recommended outreach steps to take now:
- Immigration legal services providers are encouraged to contact Sudanese and Nicaraguan TPS holders immediately to advise them of this notice and their continued status.
- Legal practitioners should conduct outreach regarding the availability of late re-registration. According to DHS’s report to the Court prior to the Federal Register Notice, USCIS is expected to issue guidance in which “any late re-registration applications for the affected populations and will take into account the circumstances related to the termination notices. USCIS adjudicators will give presumptive weight to whether the delay in filing for re-registration was due in whole or in part to the termination notices or the May 24, 2017 extension of the designation of Haiti when determining whether good cause has been met. If the individual’s claim to have delayed filing for this reason is credible, it will be considered a presumptive factor in favor of a ‘good cause’ finding, but all relevant factors must be considered by the adjudicator.”
- Outreach should be done to combat fraud and the unauthorized practice of immigration law related to this litigation. Sudanese and Nicaraguan TPS holders should be advised of the automatic extension (no re-registration or fees needed) and Haitian and Salvadoran TPS holders should be advised that they do not need to take any action at this time and their TPS continues.